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Tag Archives: rule of law

Democracy is a system of government accountable to voters. Democratic republics and responsible or parliamentary democracies have in common that both are governments by the people. However, in the model of responsible government, the supreme power in vested in a parliament made up of representatives of the people. In a republic, the people are represented by a supreme power divided between an elected leader versus a legislative body made up of elected representatives. Republics inherently deal with a system that makes checks and balances a core part of government based on the premise that strong leadership is a requisite of effective government, while, at the same time, there is a need to provide boundaries and checks to that strong leadership.

I usually call a republic a democratic monarchy because the issue is not any objection to a single political leader, but an insistence that the leader be directly accountable to the electorate. A republic denies power to a monarch without limited terms where power is transferred based on inheritance and there is no accountability. Both parliamentary democracies and republics eschew inherited power. Republics elect their kings or queens for limited terms. Parliamentary democracies, if they are monarchies, usually put their monarchs on a pedestal where they have no power. Absolute power is given to the legislative branch of government, subject only to the limitations of an independent judiciary system and sometimes a written constitution.

There is little debate that parliamentary democracies have gradually moved towards a presidential model, or the model of an elected president where the elected representatives often achieve office on the coattails of a prime minister. On the other hand, there remain distinctive differences.

This simplistic version of Politics 101 is not intended to discuss the benefits and dangers of the two respective systems, but to raise the issue of free speech as well as the principle of order and good government. The highest value is placed on the protection of individual rights, especially the right to free speech. For both systems – a parliamentary government and an elected democratic monarchy or republic – are guardians of that fundamental right. From the perspective of a member of a state based on a parliamentary democracy rooted in a principle of responsible government, one is appalled that “free speech” can be so defined that it protects the right of hate speech, certainly to a much higher degree than is the case in Canada. This does not mean that there are no critics in Canada of the refusal to protect hate speech. In contrast, Americans in general are much greater purists with respect to free speech and will often defend the right to express hatred of groups.

In the case of the current debates in the U.S. over Russian hacking into the American electoral system to favour one candidate, the objections are primarily to a foreign state doing so. Spreading false information is perceived as simply part of the democratic political tradition. Listen to Jeffrey Lord on CNN; he even fails to acknowledge the legal limits placed on malicious free speech which intentionally misrepresents. This, according to most American constitutional theorists, is banned by U.S. law. However, whatever the range of differences, the bar is very high in only restricting intentional and explicitly malevolent lying. This is very different than restrictions that can be found in a democracy like that of Canada.

One corollary of such a difference is that the American republic places a much greater stress on human rights; in the U.S., individuals enjoy a wider compass. At the same time, fundamental weaknesses have come to the fore in a democratic monarchy, particularly in the last American election of Donald Trump as the monarch. The American government has moved, certainly in the White House, even further away from order and good government towards chaos. What is less evident is that opportunities to restore order become fewer and harder to implement the longer DT is in office. “Topological mixing” versus linear clarity is enhanced because of the continuous presence of a “shift operator.” In other words, chaos has a propensity to increase because of the continuing central role of Trump.

This points to a second and related major difference. Both democratic monarchies and parliamentary democracies are committed to preserving order and preventing chaos. However, a system of responsible government is more averse to chaos and disorder. For in republics, political division exists, not simply between political parties, but among different governmental institutions. This is part of the system of checks and balances that builds into the system a greater degree of chaos than in a parliamentary democracy. In contrast, order and good government are mainstays of parliamentary democracies and enjoy a higher status. I argue that in parliamentary democracies, the principle of averting chaos is more important than even the protection of human rights and the freedom of speech.

What is chaos? Since the popularity of the 2001 movie about John Nash, A Beautiful Mind starring Russell Crowe, chaos theory has become part of public, though not popular, parlance. The biggest threat for responsible government is chaos even more than breaches of human rights. However, according to chaos theory, systems which are more dynamic tend to have a greater reliance on chaos. Further, in chaos theory, dynamic systems are, ironically, far more sensitive to initial conditions.

Stanford Levinson in his 1989 book, Constitutional Faith, argues that the foundation of the American secular religion is its 1788 constitution that forms the counterweight to fragmentary propensities, on the one hand, and the emergence of tyrants on the other hand. Chaos is anathema to both democratic republics and those responsible democracies which esteem order and good government. Chaos is neither governance nor responsible. Chaos is favoured by fascist systems. In part, it is because fascism offers itself as the only escape from chaos; chaos is created to make the need for fascism apparent. But it goes deeper. For in all dynamic systems, the creative energy, the initial big bang, comes from that chaos.

However, there is a third way in which chaos is favoured – not simply as an impetus and distraction, not simply as an energy source, but as proof of the need for a transcendental mind that will impose order on that chaos. There is also a fourth sense which makes chaos crucial to a fascist system. Chaos undercuts the possibility of a hierarchical ordered system. That is why DT is a populist. That is why he will undercut his army brass and arbitrarily demand that transgender individuals be thrown out of the army. That is why he will upset the leaders of the boy scouts by using a jamboree as a political rally. That is why he will upset most police chiefs when he suggests that there is no problem with roughing up arrested individuals when putting them in a squad car.

Contrary to authoritarian governments and widespread impressions, the leader of a fascist regime does not bring about order by imposing it from above, but by making it the duty of his subordinates and followers to discern and then work towards the realization of the amorphous image of the transcendental mind of the leader. That is why a fascist system, to most people’s surprise, is not a top-down movement. The leader may say that we must build a wall to keep out the bad hombres and that the government of those bad hombres will pay for it, but it is the followers who will have to figure out how to square that circle. For if it is a government of bad hombres, why would it pay to build the wall? The duty of the leader’s subordinates and followers is to discern how to realize this contradictory vision in the leader’s mind.

The dilemma applies to health care and to tax policy, to refugees and to immigration. How can the U.S. be a country open to the poor and an elitist country that builds a great deal of its human capital by skilled and well-educated imports from abroad? Reconciling expanding health benefits both in the entitlements and the people entitled while lowering premiums has to be “im Sinne des Führers ihm entgegenzuarbeiten.” It is the duty of all, especially appointees and followers, to interpret the vision of the leader and work assiduously towards its realization. Thus, initiatives are not just relegated to subordinates, but subordinates are held responsible to take those initiatives. They will of necessity be at odds with other colleagues, since there is no centre of interpretation. That in turn will recreate the chaos that is the foundation of a fascist system and, in turn, the demand for the leader to impose order.

Delegation, interpretation, conflict and disorder will all be hallmarks of such an administration. There will be a chaotic struggle of overlapping and competing centers of power that will vie as if in a Darwinian struggle to predetermine and refine the contents of a mind that works by free association rather than according to the rules of logic. Contrary to popular myths about fascism, the will of the leader will neither be absolute nor monocratic. A four-star general might be recruited to make sense of that chaos, but John Kelly as head of the White House, in spite of his experience and esteemed record, will crash his head against a wall trying to make sense of the slovenly manner in which Donald Trump makes decisions, sticking to some like gorilla glue while discarding others as mere flotsam while tossing the detritus overboard, and, to deliberately mix metaphors, then throwing the subordinate offering that interpretation “under the bus”.

However, when he cannot and does not decide between and among competing interpretations of his inchoate inspiration, any inability to make “spontaneous” and “irrevocable” decisions will drive him to retreat to stare at his own navel and issue a flurry of tweets as if they were a genuine means of communication of policy in a system of governance based on checks and balances.

The result, ironically, is even more personalized rule and the increasing elimination of the separation of the private and the public spheres, a hallmark of fascism as subordinates continue to vie to promote what they believe to be the leader’s will. It will be a system where the buck never stops at the White House Highest Office, except in cases of clear success, even if those successes are not the prime responsibility of the leader’s regime.

This is why so much attention is payed to Donald Trump’s psychological make-up. His self-esteem is not only the centerpiece of the governing structure, but it is one most propelled by past scars left when that self-esteem had been wounded. Was Donald Trump most humiliated when the Manhattan bigwigs in the New York development world spurned this vulgar arrival from Queens and Brooklyn or when the banks turned their backs on him when his businesses declared bankruptcy for the fourth time after the fiasco of his casinos in Atlantic City? It is not simply difficult but impossible to discern which flapping of the butterfly’s wings determined the Trump trajectory.

Donald Trump did not achieve his office on his own. He said that he was the voice of his followers. But they are the echo of his voice. In Nebraska where almost 80% voted for DT, after seven months of chaos in his administration, the vast majority still, as he does, blame the chaos on the “obstructionists.” His voice is viewed as their voice and the expression of sincerity, both because that which he articulates is based on emotion rather than facts and logic, and because he conveys sincerity even as he repeatedly lies and avoids any depth of reflection or deliberation.

But others in addition to the solid base of populism are responsible. Conservatives believed they could manage this vulgarian. Conservatives and the followers of his populism are “strange attractors.” At the very least, the conservatives believed that they could use his rule to advance the conservative agenda in judicial appointments, in administrative changes in a myriad of departments – health, the environment, agriculture, science policy, etc. And they have done so even if there has been no positive legislative record.

However, will conservatives and even his base begin to desert him if the chaos continues as well as his shameless record of lying and betrayal? For he demands fealty but offers no loyalty in return, even as he attacks the responsible media for producing “fake news,” a claim which his followers repeat. Reporters are “scum” and “enemies of the people.” Thus, paranoia is enhanced as DT’s base wallows in fantasies about immigrants and refugees and lap up conspiracy theories.

Another source and expression of chaos is DT’s overt contempt for his appointees, even though he periodically praises them with superlatives, and his covert condescension for the members of his base whom he manipulates with the tremendous repertoire of an actor even as he plays the charmer and cracks “jokes” at the expense of others. When interviewed and asked about their support after seven months of the DT administration, they quickly reveal that they live in “echo chambers or information cocoons.” (Cass R. Sunstein) Instead of exposure to difference, instead of celebrating the unplanned and the unanticipated, what counts is repetition of the same, precisely the environment for enhancing rather than reducing chaos. Chaotic complex systems are characterized by their feedback loops and repetition, by self-similarity rather than broad variation.

There are mundane expressions of this chaos. DT loves to play golf. It is a game in which prediction is difficult and where many variables determine the quality of play. But golf is also a game of honour; each player keeps his own score. DT is renowned for his cheating. More publicly, even in his own golf courses, he breaks all the rules and drives his cart across greens and tee boxes. And he can’t shut up when others are shooting. He talks through his game, filling the narrative with his usual hyperbole. While he celebrates the game for the exercise it offers, he always rides a cart.

Most importantly, DT manifests the greatest contempt for the rule of law. Even though Jeff Sessions has proven to be the most effective cabinet member in realizing a conservative agenda, DT belittles him for doing what he was legally required to do, recuse himself from the Russian investigation. DT fired James Comey as Director of the Federal Bureau of Investigation (FBI) for pursuing the inquiry. DT threatens Robert S. Mueller III, the Special Council heading the investigation, if he crosses the red line of probing his finances. In the meanwhile, he denounces the investigation as a witch hunt, illegitimate and a total fabrication instead of stating, as his own lawyers have done, a commitment to cooperating fully and transparently with the probe. DT, in contrast, does not express any belief in the role of an impartial investigation insulated from political interference, but sees all employees, even those in the Justice Department, even those in the special investigation unit, as his lackeys who owe fealty to him. As Ruth Marcus wrote in The Washington Post, “Trump is a one-man assault on the rule of law.”

It is precisely because of this trait that the longer DT remains in office, the more unpredictable his behavior will become rather than more predictable and better controlled. Uncertainty will increase exponentially the longer he stays in office. This means that he is unlikely to walk quietly into the night if he is indicted. He will battle. He will bring his followers into the streets.

One might dismiss the charge that DT is a fascist because he has neither quasi-militarized black nor brown shirts at his back, only Trump peak caps. Further, DT is wary of foreign wars rather than being a territorial expansionist. And he picks on Muslims rather than Jews. But those are details and different manifestations which are not at the core of fascism. Chaos is. Characterizing the expression of responsible journalism and free speech as fake news is. Chaos is not simply an accidental feature of the Trump administration that hopefully can be corrected by better management, but that which is at its core. Though insufficient in itself, chaos is another necessary condition for defining Trump as a fascist.

“Mad as Hell” can stand for uncensored speech, telling it as it supposedly is in a professed unwavering dedication to speaking the truth. It is also often associated with despair and an unwillingness “to take it anymore.” I am mad as hell, but I hope my speech remains sensitive and self-censored (it does not always). Further, instead of leading to cynicism and uncontrolled rage, I hope my anger reignites the fire in my belly and my quest to right the wrongs of the world. Most of all, I trust that the rage will not undermine my dedication to objective analysis and detachment.

I woke up late this morning, very late. I was furious. Not for waking up late. I had slept so long because I was so angry. I am raging. And when I get very emotional, I knock myself out and fall asleep. It is the other side of my sleep condition that allows me to be very productive between 4 and 8 in the morning. It is why my writing is perceived to be objective and cool. This morning I am not cool. I am mad as hell.

First of Four Stories

In the first news item I read, a handsome, young, clean-shaven police officer’s picture of Sgt. Paul Parizek from the Des Moines police department appeared above a story that included the following: “There have been at least 49 officers shot and killed in the line of duty this year, according to preliminary statistics from the National Law Enforcement Officers Memorial Fund, a nonprofit that tracks police deaths. In a report released earlier this year, the fund said that more than half the officers killed by that point were shot in ambushes.” (my italics)

Is this true – two dozen police officers shot in ambushes in the U.S. this year? I did recall that eight officers had been murdered in attacks in Baton Rouge and Dallas, but this horrendous event was only a quarter of the number killed up to that date in 2016. But it was the fatal shooting of the two police officers this morning that made me sit up and listen, made me pay attention to the pattern. Why I have been so obtuse is another story.

In the United States, there is a war against police officers. Crime has been down. Murder rates are way down. Policing had become significantly safer in recent years. But there has been a dramatic change in 2016. In Urbandale in Iowa, one officer was shot and killed sitting alone in his patrol car next to Urbandale High School. 20 minutes later, a Des Moines police officer responding to that first shooting was also shot and killed.

Modernity is based on the rule of law. Professional police are a key component in maintaining the rule of law. Police have two prime functions. They try to prevent crime in part by capturing criminals and bringing them before courts of justice. But police have a second function. Whether they are engaged in traffic management or the protection of property by demonstrators and potential rioters, they also protect that property, the system in the West by means of which our needs are satisfied. Police are concerned with the well-being of each individual as well as the protection of society as a whole. Our basic welfare and our lives depend on the ability of these men and women to fulfill their job. An attack on the police that now appears systemic and deliberate undermines the fundamental foundations of our society.

Second Story

This story began with a simmering fire in my kishkas (look it up) by one of the emails I received in response to my blog the day before yesterday. In part it read, “Trump is a talented leader, who calls out the liberal and greedy elite.” [He calls out the greedy, he who is the icon and advertisement for greed!] “Like King David. He likes women like all healthy males including you and me. Most women play to their sexuality through makeup and choice of clothes. Healthy and tasteful. Bill Clinton rapes and abuses women. Hillary destroys women who speak up against her husband’s victims so that this power couple can play the corrupt system.”

It is NOT natural and healthy to grope women. It is not natural and healthy to force yourself upon women. It is sick. And to boast about it makes it sicker. And to claim your money and power entitles you to engage in such behaviour and allows you to get away with it is sickest of all.

Aside from the libels against Bill and Hillary Clinton that have been repeated so many times that Clinton-haters take for granted that they are true, what really kindled my ire was the description of Donald Trump as being a healthy male who admires women, a man who boasts and has possibly a record of groping women and physically assaulting them, a man who admits that he becomes furious if his dinner is not put on the table by his wife when he arrives home.

That was the kindling. The fire in my belly broke out in full flame when this morning I read a story about Jane Doe who was raped by a champion swimmer, Brock Turner. He was only sentenced to six months in prison and was out on parole after three months. The rape victim’s 21-year-old younger sister wrote, “Today I am still sick thinking about it, sick to my stomach every time I am reminded of the incident.” And I felt sick to my stomach as I read about the devastation visited on both these women, the rape victim and her sister. The court records showed that Brock Turner had behaved in the same way that Donald Trump boasted of behaving, initially repeatedly trying to kiss the eventual rape victim against her will greeted with an unquestionable and demonstrated lack of interest.

But what set off the roaring fire in my belly that has made me so nauseous this morning is Judge Aaron Persky’s sentencing statement and the response of the rapist’s father to the rape of a woman who had been left unconscious, naked from the waist down, behind a dumpster. The two sisters suffered at the public humiliation of exposing what happened to the older one in full detail on the internet. The two sisters were both raped over and over again in their minds as they both sat through the court sessions over a six month period. The younger sister addressed Brock Turner directly: “Where has your remorse been? Really, truly: Do you feel guilty because you were sexually assaulting her or because you were caught?”

Male assaults on females are not only despicable and outrageous, they symbolize everything a civilized society must oppose. These assaults have absolutely nothing to do with sex, nothing to do with the pleasurable and passionate intercourse between sexual partners and everything to do with aggression and hatred of women. So this morning a report reads that in Greensburg Indiana, when a woman turned down her boyfriend’s offer of marriage, he shot and killed her. Recall that the two Swedish heroes, Peter Jonsson and Carl-Fredrik Arndt, who had seen Brock Turner attacking the victim and ran after him and tackled him after he fled, testified that the victim was motionless on the ground at the time and could not be woken up, totally contradicting Turner’s insistence that the sex was a product of consent.

But what happens? The two sisters live with the experience for the rest of their lives. In an open and shut case – which very few are – the judge responds favourably to the letters requesting leniency when there has been no demonstrated contrition nor open admission of responsibility. Just lies. And a father who paints his son as the victim! At least Ari Shavit immediately owned up to his responsibility and expressed deep contrition when the stories of his assaults on women became public.

Third Story

As the Republicans face the real and imminent possibility of a Clinton presidency, they have already evidently begun to plot a campaign of obstreperousness, about continuing the campaign to refuse filling Antonin Scalia’s Supreme Court seat, thereby bringing the whole system of justice into disrepute. For the system depends not only on a responsible and empathetic administration of justice, on a conscientious and informed legislative body, but on an independent judiciary at the very highest levels. When ideology dictates how issues of justice are handled, the end of democracy is near. It is not only a break with democratic tradition to refuse to approve an appointment, but an effort to blow up the fundamentals of democracy altogether. When cynicism takes the reins of justice, we are all doomed.

Fourth Story

This tale might seem the most remote from the story of a wanton ambush and killing of police officers, dealing with assaults and rapes of women and sabotaging the whole system of justice when your side is defeated. But in the end, I suggest that it goes to the heart of the matter.

The background of the story is over the use of the Wailing or Western Wall in Jerusalem, not the conflict between Arabs and UNICEF over proprietary rights to religious sites among Jews, Muslims and Christians, but the fight over whether Orthodox Judaism should retain monopoly control over what is now regarded as the holiest site in Judaism – the exposed sector of the old temple wall. In 1967, the government, as a gesture to the religious party allies and an indifference to religious symbolism, had assigned responsibility for administering conduct on the plaza outside the wall to the Orthodox establishment. That establishment maintains a strict separation of sexes and limits even the way women can worship at the wall. Hence the protests by many orthodox women against the patriarchy that controls access. Hence other counter-protests against non-Orthodox Jews who have insisted on a place for egalitarian services at the wall. A political compromise had been forged to build a new section of plaza that would permit that new area of plaza to be used for egalitarian religious services.

The Netanyahu government, under pressure from his Orthodox political allies, in spite of Supreme Court orders, has repeatedly stalled on implementing this compromise. This morning, there was an effort of hundreds of demonstrators led by leading Conservative and Reform rabbis to carry Torah scrolls to the Wall and conduct an egalitarian service. They were resisted by force by Orthodox young men as police stood by and refused to interfere. What followed was unprecedented pandemonium and violence.

Some of the most prominent clergy in the diaspora were shoved, pushed and thrown to the ground. But they persisted. Netanyahu, the same man who refuses to implement the compromise arrived at after years of negotiations, stated that, “unilateral breaches of the status quo in the Kotel harm our attempts to reach a compromise,” even though a compromise had been reached and the issue was its implementation. There was no condemnation of the violence perpetrated by the young orthodox men.

When, because ideology and not negotiation and compromise, lawlessness ensues, when courts are ignored, when police choose to remain passive in the face of overt assaults, when politicians practice the politics of inaction, when supreme courts are blatantly ignored, democracy is at stake.

And it all starts with the mistreatment of women and the resentment of many men and women to allowing a woman to become President of the United States. This resentment goes much deeper than even racist attitudes against Blacks. The story goes back to Bereshit and the myth of the birth of history and time in our world and the story of Adam and Eve.

In the introduction to my study of UNSCOP, I asked whether the commission recommendation of partition into a Jewish and an Arab state had been based on a recognition of the national rights of the Jewish people to return and restore their homeland. I implied that the recommendation had not been based on a recognition of the rights of the Jewish people to national self-determination. If not, why did the committee recommend partition? Why did the commission recommend giving Jews their own state?

Dividing Palestine into a Jewish and an Arab state meant war. The Arabs, including the Arab states, were clear and unequivocal – they would not allow an upstart minority led by Jews from Europe to carve out a separate state in the heartland of the Arabs. Further, they were not deterred by the United Nations. The committee had been deliberately set up to exclude states – Russia, the United States and the mandatory authority, Britain – from any direct role in the enforcement and implementation of the recommendation. The committee was to be a commission of influence and not one of enforcement, though presumably the imprimatur of the United Nations would bring some degree of authority to the recommendations. However, as shall become clear, beginning with Sandström, most committee members gradually came to the conclusion that enforcement would be required if partition were to be recommended.

As we shall see in subsequent sections, Sandström was not so naïve as to think no force would be needed to enforce a solution. In a memorandum he prepared in early August in preparation for making the final recommendation, he wrote, “who will enforce the partition scheme? The answer is that, insofar as it is accepted by Jews, the Jews themselves will look after their enforcement in their State and that for the rest of enforcement will depend on the force the United Nations will put behind the adoption of a solution.” Absent that enforcement, war was inevitable.

As Sandström concluded “Without resorting to force, it is to fear that no solution will get through.” (Memorandum by the Chairman, p. 6) In the Minutes of the First Informal Private Meeting of UNSCOP on 6 August 1947 to begin their deliberations where the views of the members were all surveyed, Sandström, in contrast to any of the other members, insisted that, “[We] must also consider possibility of enforcing the solution and the desirability of peace in Palestine.” (p. 5) He continued, “Any solution adopted will be met with rather violent reactions from both sides in the community and will have to be enforced by outside forces.” (p. 6)

In a Memorandum of the Chairman on 12 August, he reiterated, “As the main aim, I see an appeasement. I am aware that an appeasement might not come by itself, that a solution might have to be imposed by force. It is desirable that as little force as possible will have to be used in the appeasement-action and that, after this action will have come to an end, there is a fair chance of the peace being maintained.” (p. 1) Finally, in the notes used to prepare the final report (The Essential Factor in a Solution on the Palestine Question), on p. 15 on section IV “Implementation and Enforcement of a Solution,” he wrote, “Whatever the final solution it seems apparent that enforcement measures, at least for a time, will be necessary. On the basis of Articles 10 and 14 of the Charter it would seem clear that the General Assembly may properly make recommendations on such matters in connection with the final settlement of the Palestine question.”

In clause 2 of the section, he wrote, “The Crucial issue, however, is where the responsibility for enforcement will lie and where the expense involved will rest…it would probably be advisable for the Assembly to determine the size of the units required for this purpose, the states responsible for providing them, and other necessary details such as the command, and to incorporate these matters into a draft treaty which would be appended to its recommendations.” (p. 15) Sandström then went on to suggest why the creation of this international force might be extremely difficult if not impossible to achieve and fell back on the suggestion that the UK might assume responsibility for enforcement. Given the attitudes towards Britain, Sandström concluded that this would be “an extraordinarily difficult task” and we shall soon see why.

In effect, the game was over before it started since no path seemed open to an enforcement mechanism and an enforcement mechanism was viewed as absolutely necessary. In fact, the UN had proven itself to be impotent, though in 1947 there was still some hope that a UN recommendation would be effective in keeping the peace. That had been the chief goal of all international diplomatic efforts following WWII – peace based on the rule of law and not a peace enforced by might. 1948 would dash that hope even though the International Court of Justice began hearing its first dispute since the end of WWII, even though the third UNGA session adopted the Genocide Convention as well as a Universal Declaration of Human Rights.

The ineffectiveness in many areas could be blamed on the outbreak of the Cold War and the absence of co-operation between the great powers, a presumed keystone for the United Nations to function. However, on the Palestine question, both superpowers supported the end of the mandate and both supported partition, though American support wavered. Can the impotence of the recommendation on partition in securing a peaceful resolution of the problem be blamed on inadequate consideration and poor reasoning of its members and not just an absence of enforcement of the recommendations?

Of the four members of the sub-committee on the constitution sub-committee, Emil Sandström and Jorge Granados, as well as Ivan Rand, were men very well acquainted with edicts from on high that carried weight through the quality of the legal and political reasoning and the authority of the institution issuing the decision. Only Dr. N. S. Blom had been involved in the actual exercise of power to implement the edicts of the Dutch imperial regime. The Jewish-Arab dispute was not an issue of power appropriate to understanding international resolutions on economic issues, for power relations failed to explain the resulting institutional recommendations once power was bracketed and surrendered as the mechanism to settle the conflict. When influence and authority both failed, the parties themselves resorted to military power to settle their conflict.

However, when the issue was referred to UNSCOP, an UNSCOP that deliberately excluded world powers (primarily the U.S. and the USSR), power from above had been surrendered as a means to settle the dispute, in part because the U.S. did not want to provide an opening for the USSR to have an influence in the Middle East. (This is particularly pertinent to the present when Russia has once again resumed its centuries-old efforts to acquire a geopolitical presence and influence in the Middle East.) Either of the major powers might have been able to settle the matter with a free hand, and certainly working together they could have, even though Britain had tied itself up in multiple knots and clearly failed to do so. Instead, the issue was referred to members of the Committee for a recommendation.

Power was bracketed because, by 1947 it was evident that the world was entering a cold war between two fundamentally incompatible economic systems with equally incompatible values. Western values were premised on the preservation of individual liberty against the encroachments of government power. In the East (loosely speaking), government coercion was the sole arbiter, not just in the use of force, but to facilitate the collectivity maximizing its economic potential. Such a conception was not viewed as the exercise of law; liberals in the West regarded this conception of law as the negation of the rule of law, for courts of law were neither independent nor impartial, but were simply instruments of the state. When all power is concentrated in the state and safeguards of individual liberty are abrogated, there is no rule of law but only the growth of tyranny. So UNSCOP was created largely on liberal premises related to the rule of law and the use of arbitration to mediate and arbitrate disputes to bring about a peaceful resolution of conflict.

In this case, that reference to the committee for this purpose failed. The intent of this paper is not to explain the failure, but the foundation for its recommendations that were presumed to be based on findings of fact, on customary international law and on the independence of the individuals on the committee. Emil Sandström , who became chair of UNSCOP, was steeped in these values aimed at using international arbitration as a solution for disputes that can result in violence and undermine international understanding and goodwill. Recommendations were to be based upon reason by men pledged to impartiality lest the alternative, war, result. But outside force was needed and it was not available.

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Abdur Rahman in the Minutes of the Fourth Informal Meeting, Mr. Sandström’s Office, 8 August 1947, said that, “Partition would promote war – almost immediately – both inside and outside the state.” (p. 4) Hood said that there is, “No real evidence to suggest that partition would be easily enforced; evidence points in exactly opposite direction.” (p. 4)
Sandström was but one of a cluster of Swedish international civil servants who emerged after WWII to serve as mediators. The dispute between Thailand and Cambodia was arbitrated by a Swede. Olof Rydbeck mediated in the Western Sahara dispute, another conflict that remains unresolved seventy years later. Gunnar Jarring served as the mediator between India and Pakistan over Kashmir in 1957 and in the Middle East after the 1967 war. Of course, there was also Hammarskjöld, who, along with Mike Pearson of Canada, helped establish the original UN peacekeeping force following the crisis of 1956 and became Secretary-General of the United Nations.

Thus far I have pointed to Bernie’s ill targeted criticism of the major banks, his protectionist trade policies, his weak position on gun control and, most extensively, on his incoherent policies and performance on economic immigration, deportation, family reunification, the diversity visa lobby and, most importantly, his hesitancy and modesty in dealing with Syrian refugees. I could have spent much more time on the inadequacies and incoherence of his migration policies. For example, how could he:

Grant amnesty to illegal aliens but vote against bills to do just that only because they include no provisions against guest workers

Extend asylum to victims of domestic violence but not significantly increase the intake of Syrian refugee victims of state, rebel and terrorist violence

Expand the grounds for refugee claims by including victims of gang violence and include the credible fear standard for making an asylum claim while not recognizing victims of a different type of gang violence and credible fear when it comes to Syrian refugees

How can he enlarge the room for refugee claimants who can manage to get to the United States but keep resettlement of refugees at a minimal level so that the combination results in enhanced incentives for smuggling operations and illegal entry?

Oppose chain migration but support expanded family reunification

Supposedly support the high tech business sector but oppose their ability to import necessary skills and increase the pressure to relocate overseas while denouncing the out-migration of such firms

Oppose the visa lottery program but defend it in a speech in November 2015 “The Diversity Visa program is an enormous and inexpensive source of goodwill, affords potential immigrants with no family ties an opportunity to join our great nation, and is particularly important to African immigrants.”

I could go on, but I want to now focus on two additional reasons and complete the reasoning tomorrow, erring of necessity on the side of brevity because the New York primary is tomorrow.

Reason Five – The Rule of Law

Other than referencing Hillary Clinton’s legal problems with her use of emails when she was Secretary of State or Bernie Sanders’ legal challenge (successful) to enfranchise 17-year-old voters in the Ohio primary who will be 18 on election day, very little has been said about the rule of law, the system of laws and regulations that are the bedrock of a constitutional democracy and that apply universally to the wealthy and the poor, those in power and those who lack power, those in positions of formal authority and the vast majority who are not. As the saying goes, in a rule of law polity, the rules apply to the rulers as well as the ruled. This is true not only in the application of the law but in its creation. While Barack Obama was extremely cautious and modest in his use of executive powers to make law, what has become clear in Bernie Sanders’ campaign is that he would rely far more on the use of executive orders to override legislators.

This is a practice that was prevalent in both Venezuela and Brazil. The reality is that strong proponents of economic justice who blame rich economic elites for a country’s problems tend to see economic justice as trumping legal justice and procedures. Further, the more economic incentives and subsidies expand, whether on behalf of corporate interests or the needy, there is an increase in bureaucratic power. Though a strong and independent creative civil service is an essential component in a modern state, something the political right is blind to, it is also the case that bureaucrats are susceptible to being corrupted by the economic inducements of the rich and powerful, to which Bernie is legitimately ultra-sensitive in the United States, but also to those who gain political power and envision enhanced control over different segments of the economic sector as the entry to greater economic and social justice, an entry point to undermining the rule of law and enhancing the power of individuals, including the President, and groups, a susceptibility to which Bernie seems insensitive.

Perhaps even more, but certainly as much, modern states need an honest, capable and efficient administrative apparatus, which attacks on government per se undermine. That civil service, and it is a service that must both remain civil and serve the universal interests of civil society, must retain a realm of initiative and independence to ensure the polity remains immune to both economic and crusading political predators. Unfortunately, there is a built-in tension between demands for the state to build the necessary infrastructure, provide the necessary services and incentivize both economic engines and individuals, as opposed to the temptation to turn these mechanisms into convoluted traps for inaction or, on the other hand, units for dispensing patronage and favouritism. Good government needs to walk that fine line between the Scylla of sclerosis and Charybdis of indulgences. From many of Bernie’s statements, one fears that he would remove the blindfold of justice and sail the ship of state into the rocks on either side of the straights as he attempts to maneuver the ship of state through the foaming waters of an unruly social environment.

Israel

I could write on a number of political areas of foreign policy, such as Libya on which I have written a number of blogs, but I have chosen Israel because it is an arena I know well. Further, I have chosen to focus specifically on the degree to which Israel fights its wars in accordance with the norms of just war, an area on which I claim some expertise. In the contemporary period, Israel generally and just war analysis more particularly has proven to be the Achilles’ heel of the Left. Bernie is the exemplification of the propensity of even the moderate Left, and Bernie is a card-carrying member of the moderate Left, to misunderstand and misrepresent Israel, a propensity exacerbated by a right in America which serves as a cheerleader of the Likud in Israel and is almost blind and deaf to the rights of Palestinians for self-determination.

In the corrected version of his original infamous editorial board interview, Bernie said, “I do believe that Israel…has every right to destroy terrorism. But in Gaza there were 10,000 wounded civilians and 1,500 killed. Was that a disproportionate attack? The answer is it was. As somebody who is 100% pro-Israel. In the long run, if we are ever going to bring peace… we are going to have to treat the Palestinian people with respect and dignity.”

In the reference to the cry about the numbers, he did originally say that, “my recollection is over 10,000 innocent people were killed in Gaza,” but soon corrected that to say 10,000 civilians had been wounded. So the outcry that there were only 1,400 or 1,600 killed according to even UN or Palestinian figures is beside the point. The real issue is that he referred to all the dead as “civilians.” Israel says there were only about 700 of the total of 2,130 killed. The UN and the Palestinians double the proportion of civilians killed. The reasons are clear. Youngsters under the age of sixteen are recruited by Hamas to serve in auxiliary positions as observers, runners, etc. When they die, they are counted as civilians. So are policemen who have a military role in Gaza. And since they do not wear uniforms, many militants can also be counted as civilians.

But the controversy over figures is both a distraction and an indicator. For the real issue is whether Israel’s response to the Hamas rocket attacks was disproportionate. Bernie on this point is dogmatic. “It was.” For him it is self-evident. Since there was wide-scale destruction, including destruction of apartment buildings and even hospitals, for Bernie it follows logically that the Israeli response, however much Bernie finds such a response in itself to be legitimate, is self-evidently disproportionate.

However, in the application of rules of just war and its conduct, a military action is disproportionate if excessive force is used to achieve a military goal. A military action is disproportionate if civilians and civilian facilities are attacked indiscriminately. The issue is not the quantity of destruction, but the procedures and mechanisms for minimizing civilian destruction.

In relation to the amount of force used to achieve a legitimate military objective, if the goal was forcing Hamas to sue for peace, as the United States did with Japan towards the end of WWII, then Israel would, at the very least, have to reoccupy Gaza. If the goal was deterrence, many would argue that insufficient force was used since the objective of deterring Hamas from targeting Israel with rockets has worked only for a limited time and then the practice has been resumed. If the goal was temporary deterrence and enhancing the protection of Israeli civilians and civil life without a significant cost in the lives of Israeli soldiers, then the proportion was probably about right, though I personally would have been very hesitant to use that much force. But then I am not a military officer or a politician charged with such a responsibility. And my wariness about the use of force probably ensures that I would be unfit for such a responsibility.

The issue is not treating the Palestinian leaders or the Palestinian people with respect and dignity. I think that Israel often falls far short of that standard in treating Palestinian civilians. The issue is whether Israel applies the standards of executing a just war sufficiently to protect the civilian populations in the territories where it is engaged in lethal and legitimate warfare both in general and in particular military encounters. By any measure that is objectively applied, Israel applies the rule of law in accordance with just war doctrine with greater attention to those rules than any other state, even the United States which also has high standards. Most countries, including the peaceable Kingdom of Canada, do not assign legal officers to military units to ensure that ethical considerations enter into targeting decisions. Israel does.

Of course the IDF suffers from the same tensions between the legal ethical officials and the commanders charged with winning a military battle as in any other army, but those ethical considerations are there and they are by and large effective. Bernie’s simplistic judgement that Israel practices indiscriminate warfare against the Palestinians is a calumny. That alone makes him unworthy to be the Democratic presidential candidate when Hillary Clinton is the alternative.

So when Bernie says that, “no one will fight for that principle (a right of self-defense) more strongly than I will,” and insists that Israel, “ has the right to live in freedom, independently and in security without having to be subjected to terrorist attacks,” he is not to be believed. For his credibility depends on delivery and execution, not just rhetorical adherence to a right. Further, when he boils the failures of the peace process down to the need to treat Palestinians with dignity and respect, he proves that he is not only self-delusional and naïve, but is also ignorant of the machinations and positions of the various sides.

Opposing Netanyahu does not entail accusing those who have dealt with him as believing that Netanyahu is always right. Championing the cause of Palestinian self-determination does not require libeling Israel and its labours while assuring everyone that you cannot be engaged in libel since you believe in Zionism and support the Jewish right to self-determination. The reality is that the rights of self-determination of both Jews and Palestinians exist within a historical, political and ethical context and that does not easily boil down to simplistic sloganeering. It is not sufficient to oppose BDS, to condemn terrorism in general and Hamas in particular, to even criticize the bias of the Goldstone Report, but without really understanding its fundamental flaws. Bernie is certainly not an anti-Israeli zealot. He is a friend of Israel, but a weak friend with too simplistic a view of the dynamics of peace and war between Israelis and Palestinians.

As we approach the G20 Summit to be held on November 15-16 in southwest Turkey in Antalya, it is important to understand not only the outcome of the Turkish election, but the various foreign policy issues with which Obama and other leaders will have to wrestle. The war in Syria, the threat from IS, especially its control of one-third of Iraq, and other crises in the Middle East, are bound to be high on the agenda. Domestic policy in Turkey also cannot be ignored since police continue to arrest people – 18 IS suspects in Antalya (2 are Russian) – in the lead up to the G20. Moreover, there is an intimate connection between domestic and foreign policy since foreign threats, at the very least, are used to rally support for the President.

Economics

Though Turkey’s economic crisis was the main issue of the June election, Erdoğan almost singlehandedly shifted it entirely aside for the 1 November election. In June, 53% of voters put Turkey’s economic downturn as the number one priority. In September, only 12% insisted that economic problems were Turkey’s foremost issue. This was in spite of the fact that Turkey’s economic performance had not improved one iota since June. This seemed to belie Prime Minister Ahmet Davutoğlu’s own statement twelve months ago, in anticipation of the Antalya summit and his role as chair, of the inseparability of economics and politics, and the depiction of the G20 as “the premier platform for economic and financial issues.”

The Great Recession in 2008-09 taught us that the solution to global challenges rests in global actions. The rise of the G20 is a manifestation of this spirit. As the major economies of the world, we adopted a more integrated, coordinated and effective approach to the challenges we have been facing. During these difficult times, the G20 has clearly demonstrated its capability as a global crisis resolution forum.

As the OECD Report on Turkey noted at the time, although, “GDP growth is projected to increase from 3% in 2015 to above 4% in 2017, as political uncertainties are assumed to fade, employment continues to rise, and the exchange rate depreciation and the gradual strengthening of global markets support export growth. The geopolitical crisis at the southern border and the associated influx of refugees pose challenges. Currency depreciation until October has strengthened price competitiveness, but has also weakened household confidence, created pressures on corporate balance sheets and added to already high inflation.”

Economic improvements in Turkey were premised on a further decline in the political troubles in the southeast. Those troubles increased as the war with the PKK was resumed. Turkey is now more involved in the military conflict in Syria than ever before. IS now poses an internal domestic threat to Turkey. Employment has not continued to rise. Trade imbalances persist. Inflation rates remain above targets. In this context, currency depreciation that led to weakened household and corporate confidence continued, and the very factors that usurped the focus on the economy of voters exacerbated the economic problems.

Rule of Law

The prosperity of Turkey cannot be separated from the status of the rule of law. As described in my last blog, the government seized the assets of Koza ĺpek Holdings and placed the assets in a trusteeship. While such seizures are sanctioned by law in cases of mental incompetence and in the case of minors, there is no legal sanction in Turkey – or in the rest of the developed world – for the arbitrary seizure of commercial assets without legal due process. In modern Turkey, even when under a military dictatorship, this seizure of private property was unprecedented. When a company is implicated in criminal activity, Article 133 of the Turkish Criminal Procedures Code is applicable requiring a trial and a definitive judgment before an asset seizure can proceed. There was not even any presentation or even an allegation of intention to commit a crime. There was not even a hint that Koza ĺpek was engaged in narcotics, money laundering, human trafficking, prostitution, embezzlement, or espionage.

Once, the AKP was closely allied with the Gülenists who had been disproportionately represented among judges, prosecutors and the police. Erdoğan now considers them the enemy and he has been systematically purging the criminal justice system of Gülenists, especially ever since prosecutors began pursuing the AKP government for corruption. Ali Babacan, Turkey’s Deputy Prime Minister with an MBA from Northwestern earned with a Fulbright scholarship, put it very well just before the June elections: “Public trust in the justice system is in steady decline.”

In January of last year, the Turkish police stopped and searched three trucks in southern Turkey traveling towards the Syrian border. The trucks were accompanied by officers from Turkey’s military intelligence. They contained missiles, rockets, mortars, ammunition in crates with Russian Cyrillic markings. Bizarre! But perhaps not for the world of international espionage. What was truly bizarre was the subsequent purging of the police which had stopped the trucks. Those police and four prosecutors were even charged with espionage. The widespread belief was that the arms were intended for IS of all parties. Not so strange since the NYT just before the June election reported that tens of thousands of kilograms of ammonium nitrate fertilizer used for explosives were being transported from Turkey into IS-controlled sections of Syria.

Education

The purges in the criminal justice system and the attacks against the media documented yesterday were complemented by attacks against the universities, especially universities close to the Gülen community, such as ĺpek University in Ankara. University assets have been seized by amending regulations governing the Higher Education Board (YOK). On 2 November, a pro-government journalist listed, as next in line for seizure, Fatih, ĺpek, Zirve, Süleyman Sah, Mevlânâ, Turgut Özal and Istanbul Şehir universities as well as other media outlets – the Zaman daily, Samanyolu TV and Samanyolu Haber TV. YOK was evidently being empowered to close down and seize the assets of any private university if and when the university becomes “the focal point of acts against the state.”

Part of the reason for these seizures, and for the introduction of Arabic language training in Turkish schools from Grade 2 onward announced immediately after the AKP won the 1 November elections, has been the need to supply employment for the increasing numbers of graduates from Islamic universities, virtually the only graduates equipped to teach Arabic other than Syrian refugees. There was also an ideological issue of religion versus secularism in the public realm. Kemel Atatürk, the founder of modern secular Turkey had introduced the Latin alphabet 87 years earlier to the date of the 1 November election, and that change was made part of the Turkish constitution in Article 174.

Minorities and Rights

One of the positive outcomes for education, property as well as minority rights was the final success, after decades, of the Armenian community in Turkey getting back control and ownership of its children’s camp, Camp Armen. The Armenian Evangelical Church of Gedikpaşa was assigned the deed after an interminable court case. Whether this was simply a gesture for Westerners, and particularly Americans, to sell the image of the AKP as a party of tolerance and a protector of rights or not, it was a good first step. The real test will be whether all the other properties seized from Armenians will be returned or whether this restitution was merely a publicity stunt.

However, though non-Muslim minorities have realized this benefit, other Muslim groups have certainly not. The other major group under attack, besides the Gülenists, have been the Kurds. Not just members of the PKK. According to Ferhat Encű, a Kurdish MP for the Peoples’ Democratic Party (HDP), after the AKP victory, members of the Turkish gendarmerie went on the warpath against Kurds. “Many people throughout Kurdistan have been arrested wholesale lately. Some of them participated in the election campaigns for our party.” He claimed that the police “started the violence and conflicts… they murdered civilians knowingly and intentionally.” Seyfettin Aydemir, the co-mayor of Silopi, accused the police of firing on ambulances that raced to help the wounded. Young men were gunned down by Turkish snipers. Kurdish towns, such as Cizre, have even been bombed from the air.

The HDP may have made a strategic error in the five months leading up to the 1 November elections by supporting the young Kurds who put up barricades against the police, but those activities in no way justified the systematic military attacks against Kurdish areas in south-eastern Turkey and the widespread abuse of human rights. For many, the unending curfews, arrests of politicians, attacks, torture and murder by Turkish security forces seemed to be an effort to intimidate voters who supported the HDP and signal the instability to follow if the AKP was not returned to power with a majority. After the military attack on Cizre, the 21 dead were all civilians; none were members of the PKK. This number does not include the large numbers who were arrested and tortured. Yet in Cizre, which in June had cast 97% of its votes for the HDP, the government decided for the 1 November elections, out of ostensibly safety concerns, that there would be no ballot boxes provided in the Nur, Cudi and Sur quarters of Cizre district in the province of Şırnak. 65% of Cizre’s Kurdish population lived in those quarters.

Domestic Terrorism

There are three sources of terror in Turkey: the PKK, IS and, the most dangerous and extensive, the state security apparatus. The biggest attack within Turkey, was the bombing of the largely Kurdish-led protest for peace in Ankara on 13 October. It was the largest terrorist attack in the history of the Turkish republic, Turkey’s 9/11. IS was blamed together with the PKK. But the PKK and IS are sworn enemies. Further, why would the PKK attack a mainly Kurdish rally? Why even would IS? And if the latter did, why did it not behave according to its own norms and broadcast its responsibility for the attack? Why, again, were security forces so absent from the demonstration? Why were ambulances impeded from aiding the wounded? Why had Turkey not classified IS as a terrorist organization until the courts ordered it to do so on 15 July?

What does seem clear, and as I tried to document yesterday, is that the huge victory of the Justice and Development Party’s (AKP) was in good part a result of the resumption of the war on the Kurdistan Workers Party (PKK) and its alleged threat of terrorism. The AKP won both Kurdish votes and votes from the more right-wing nationalist MHP.

Corruption

In February of last year, one of the most respected international organizations dealing with corruption wrote an important report on Turkey. The Transparency International report indicated that the real catalyst for tackling widespread corruption in Turkey had been the effort of Turkey, beginning in 1999, to acquire full membership in the EU. The Report noted that efforts, both on human rights and in fighting corruption, had improved from the base line. Nevertheless, “the country faces high levels of corruption,” a situation that continues in spite of the adoption of an anti-corruption action plan in 2010 and a series of commitments in June 2012 to cover incrimination and presidential candidate funding. As the Report stated, “the country continues to be confronted with challenges of rampant corruption and existing anti-corruption measures are still in question.” Turkey lacks an overall strategy, coordination in the campaign and a system of transparency and accountability in the political system. Immunity regulations continue to protect high-ranking officials.

Moreover, corruption reaches the highest levels. At the end of 2013, the anti-corruption wolves were at the doors of the Presidential Palace. Erdoğan responded swiftly and decisively, not only by circling the wagons of his supporters, but by launching a counter-attack against his pursuers. 14 high-ranking officials were immediately purged. The judiciary, police forces and prosecutors offices were swept clean of critics and accusers of the government. Thus was the major motive in the general attack against the Gülenists.

One might think that Erdoğan had his hands full with IS now on domestic soil, with his domestic war against the PKK, with the stalled economy, with his efforts to promote Islam in the secular school system, with the increasing revelation of himself at the centre of a large-scale corruption operation, with his rivalry with the Gülenists and with his war against the critical media, that he would avoid any adventurism in foreign policy. In reality, all the domestic problems were interrelated and the distractions of foreign policy were important in diverting attention away from his domestic troubles as we shall see in the next blog.

To comprehend the enormity of what is at stake in Putin’s Russia seizing and annexing part of Ukraine and now threatening eastern Ukraine, it is important to but the current crisis within the long trajectory of the development of modernity and the modern nation-state system. Putin is challenging the system on two basic norms: (1) prioritizing the unity of a large national group over the sanctity of state borders; (2) allowing powerful states through the use of their military might and economic leverage to reduce adjacent states to satraps and to change borders at will. These challenges have contributed to enormous international political turbulence and the risk of an expanded war is now possible. How to respond and with what degree of intensity and effort depends on understanding what is at stake. This blog, which borrows extensively from my previous publications, is intended to provide a succinct historical narrative to clarify what has been fought for and won in the existing international order.

In many world histories, the following radical shift at the beginning of the modern era likened our present time to that period. “Our current period is reminiscent of the turbulence and chaos that accompanied the transition from the feudal world order to the early Modern Period (pre-Westphalian Europe). This was a period of ‘declining empires, retreating feudal lords and an emerging class of traders and capitalist entrepreneurs.’ At that time, the Holy Roman Catholic Church represented God’s rule on earth (a divine element in that world order) and had established itself as the ‘divinely-delegated’ hegemonic power, an influential power that became an instrument of European governance. City-states were the main political units, although they were mostly controlled by monarchs. However, by the early 1600s there were already signs of tremendous turbulence in this feudal world order. One indication of this was the first pan-European (religious) war, which severely weakened the influence of the Church and resulted in the hegemon being replaced by about 300 sovereign princes. The disorder of the religious wars facilitated the disintegration of the old order which was slowly replaced by a new pan-European secular order in 1648 based on the equal sovereignty of newly created states.”

The message is that modern states succeeded empires replacing a centralized Christian empire with a diversity of different secular states. The new world order was consecrated by the Treaty of Westphalia. Though there is much truth in this historical schema, it errs by fundamental omissions. First, the resurrection of the concept of the nation as the bearer of collective values precedes the emergence of nation-states. Second, that emergence is facilitated by the resurrection of an Old Testament idea of nations at peace with one another; there is a utopian aspiration, as distinct from an apocalyptic vision, as well as an historical precedent on which these moderns relied. The aspiration included the Achilles heal of the nation-state system — whenever states and statesmen see themselves as the bearers and protectors of ALL fellow nationals in total disregard of accepted borders and the rights of states. Third, the states were not secular but Protestant, and the Protestant nation-states were at war with Catholic empires.

The Catholics were often viewed as fifth columnists, threats living within the bosom of the nation, with justification in some cases. But also because of provocation! After all, it was the true Catholic believer, Lord Robert (Robin) Catesby, in 1604 who organized Guy Fawkes, the explosives expert, and his aristocratic friends – Thomas Wintow, John Wright, Thomas Percy and Robert Keyes – to blow up James I, his wife and heir as well as all his officials in 1605 when the House of Lords reconvened in the second year after the Scottish King, James VI, son of the Catholic Mary Queen of Scots, succeeded Elizabeth to the throne of England. James was perceived as failing to fulfill his ostensible promise to permit freedom of worship for the Catholics. Of course, there had been provocations. Sir Robert Cecil had persecuted Catholics mercilessly. Under a 1586 statute, priests had to live and scurry about England in secrecy. When caught, they were most often killed. Protestant church attendance was compulsory.

Robin Catesby was a devout Catholic and a recusant, a refusenik of the time who refused to attend a Protestant church even nominally. His sister hid the Jesuit Priest, Father Henry Garnett, who was believed to be trying to carry out the 1570 Papal Bull of Pius Quintet that Catholics were not bound by any oath of fealty to their Protestant King or Queen. In 1604, freed from the restraining influence of the King, the exposure and capture of the Bye Plot conspirators who planned to kidnap the King brought the wrath of the Sir Robert Cecil onto the backs of the Catholics, a wrath that encouraged the rebels even though Farther Garnet had advised against the plot in prescient fear of an even greater persecution of Catholics.

The 1605 Gunpowder plot was the 9/11 cataclysm of its day. But the centre of the intellectual and ideological war between Protestant nation-states and the Holy Roman Empire was Holland, not England, where thinkers such as Hugo Grotius provided the ideological rational for the new order, an order highly influenced by a belief in resurrecting a new version of the old biblical order embraced by the rule of constitutional law domestically and international law more globally.

The Hebrew bible is clearly based on a politics of peoples. God promises to make the descendents a great nation (Genesis 12:2) with numerous descendents. (Genesis 15:4; 17:2; 22:17). This collection of books is premised on ethno-nationalism and populated with goyim, nations. The central concern is with the politics of the nation, the proper polis for the nation (Daniel Elezar), and securing a nation’s freedom within God’s realm on earth, not God’s realm in heaven. (Leo Strauss) The nation is premised on the principle of descent as central though not exclusive (as the Book of Ruth clearly indicates), and governance over a particular territory both to protect the nation and to pass laws that apply equally both to members of the nation and the gerim or strangers who live amongst any nation.

The children of Israel are not native to the soil for, like the Arameans who came from Kir and the Philistines who came from Caphtor, the Israelites became a nation when they came up from Egypt to settle in the land of Israel. The implication is that many if not most nations are forged from their process of movement and settlement. Further, in the case of the Hebrews, as with many other peoples – the Armenians, the Kurds, the Circassians – their unity continues even when uprooted from what became their ancestral territory. During that exile, the collective experience includes a degree of self-rule even when the nation lived within the bosom of a state in which the members of the minority nation were not equal subjects.

Thus, there are laws and practices governing the nation which lack the coercive force of the state, but which regulate the life of a people and all of its members who voluntarily adhere to that law – Torah and dat. State laws apply to those norms and rules for the protection of the nation or the people. State laws also provide equal protection of the welfare of all citizens of the realm who live on its territory, provided that they are not threats, whatever the source of their national affiliation. Finally, state laws apply to inter-national relations under applicable universal norms. The problem of Putin is not that states do not have a responsibility to protect fellow nationals who live outside the confines of the state, but how and when that obligation to protection is exercised. Are fellow nationals really in dire fear or is the creation of that fear a construct and excuse for intervention? If they are in fear, have all other methods of protection been exhausted or has the state dispensed with established international procedures for pursuing protection?

At the foundations of modernity in the seventeenth century, Holland emerges as the modern New Israel, the Republica Hebraeorum at a time when Hebrew studies and biblical research flourished at Leiden University and Jews arrived in large numbers in the United Provinces, mostly in flight from persecution and discrimination elsewhere – such as Catholic Spain where even the Conversos were being persecuted as racism rather than religion revealed itself to be at the heart of the persecution. Though these new political ideals incorporate in their political theoretical concerns the preoccupation with the ideal form of government as well as concerns with power and justice and the relationship between those who rule and those governed by the laws of the state largely inherited from the Greeks, it is from Jewish thinkers who lived in exile that Holland inherited its tradition for developing theory and rules of law applicable to the Dutch nation. (Cf. E.H. Krossman (2000) Political Thought in the Dutch Republic)

Although the material benefits of providing hospitality to the great Jewish merchants of the time, who were enjoying a Golden Age, played a part, the influence of traditional Jewish political thought on the political foundations of the post-Westphalian order was profound. The Jewish polis was not viewed as a source for universal truths, but as a model with lessons to be learned. This not just an exercise in speculation, but an actual pattern of political concern by a nation that was so critical in providing the foundations of modernity, for it was William of Orange in 1688 coming from the Netherlands who gave Britain its character as a modern nation-state.

However, the Dutch tradition differed from that of the Hebrew nation, for Holland arose out of a tradition in which the separation of Church and State, the separation from the laws that are God’s and those that are Caesar’s, was a central theme. The tradition of the king’s two bodies, and the dominion of the Church over spiritual matters versus the State over earthly matters, was not part of the Hebraic tradition of political thought. That political tradition of two political realms intersecting in the sovereign also influenced issues of membership, for canonical law had been used to de-nationalize the Jews of Spain and drive them out of the polity in the Spanish Inquisition. Thus, the Dutch had to intertwine at least three traditions, the tradition of defining the ideal polity in accordance with Greek philosophy, the tradition of defining the rights of the nation and of the excluded stranger in Jewish political thought, and the need to separate Church and state.

Hugo Grotius adapted the conceptions of equality and justice in his 1600 volume, De Republica Emendanda, and in his 1614 recommendations to the United Provinces on the treatment of foreigners seeking safety in Holland that had such an influence on the 1617 book of his friend, Petrus Cunaeus, who was less interested in emulating the ancient Hebrew Kingdom’s constitutional provisions, than its ethical ones, namely its conceptions of equity and justice.

The three different sections of De Republica Emendanda deal with constitutional, legislative and leadership issues in the first 27 paragraphs comparing the Hebrew and Dutch constitutions, the analysis of disaggregated sovereignty in the Hebrew polity divided among the different levels of structure and individuals assigned authority over those different levels, including the supreme representation of sovereignty, and, thirdly, a historical sketch of the history of the Dutch Republic thus far and its shortcomings. Those shortcomings boiled down to loss of a true substantive sense of justice that was the basis for unity, and the substitution of prejudice and superstition and the desire to impose an inflexible and dogmatic orthodoxy of belief and practice imposed by arrogant and ignorant clergy (then on such issues as predestination and the Lord’s grace) to replace true piety and respect. De Republica Emendanda explicitly refers to the ancient Hebrew Commonwealth as a prototype of those same weaknesses that produced a lack of unity because of superstition rather than a respect for inviolable laws, and that led to futile and meaningless debates over sacred ritual and places of worship rather than freedom, equality, justice and power.

This disunity led to the downfall of the ancient Israelite state. As a consequence, the failures of the ancient Israeli effort at state-building could be repeated bringing on interventions by wayward princes or emperors, the promotion of idolatry, the growth of internal strife from within, and the culminating calamity of all, civil war, and tyranny from without. In the face of such divisions and displacements, fears are projected onto outsiders as distractions from substantive failures and disagreements within. Those exercises in displacement were used to cover up rather than deal with an absence of unity so critical for the administration of a successful polis. The issues were self rule in accordance with inherited privileges and local interests that guaranteed local inalienable rights, and the limitation of powers of external sovereigns, including inhibiting the extension of those powers to exclude providing hospitality and safety to people expelled by that foreign sovereign.

In the debates over whether Jews could be granted freedom of religious belief and practice when not only Roman Catholics and specific other Protestant denominations lacked such rights, and in the face of public scandals in which one Jewish male was caught having intercourse with a Christian girl and another, a pharmacist was caught committing adultery with a Christian maid, Grotius, though not clearly and distinctly, but ambiguously and half-heartedly, commended the intake of Jews. Immigration of Hebrews was to be allowed because of an affinity between Calvinist Holland and the history and experience of Jews, and between their ancient commonwealth and its constitution and their reference to God as the supreme commander, so that humans are committed, not to following the whims of the people, but to follow divine commandments for hospitality which are couched as universal obligations of duty rather than as the universal rights of those claiming the beneficence of the host state. No quota was to be placed on immigration. At the same time, the freedom of Jews to publish had to be restricted lest they try to proselytize and seduce Christian girls. Jews could not serve in public office and young Christian girls could not work as maids in Jewish households. (These were Grotian pragmatic concessions to mob fear.) But no restrictions were to be placed on Jewish rights to trade, subject to Christian imposed closing times, or to where they could live. They were neither prevented from wearing special attire (versus the 2013 proposed Quebec Charter of Values) nor was the wearing of special attire imposed upon them. The Jewish national sense of freedom and equality, justice and beneficence provided the standard for the Dutch nation as it sought self-rule.

Grotius failed to save Holland from its religious zealots and political fanatics, and, in 1618, was forced to flee to Paris and live in exile for the rest of his life when the greatest rupture first appeared in the process of creating a modern Dutch state. However, he left a legacy of intellectual wariness of those who promoted ultimate apocalyptic visions. He also bequeathed a respect for the political values of the ancient Hebrew nation and its respect for the rule of law. Nationality had to be married to a republican order of law and self-government.

This was what Putin does not understand. Nationality does NOT trump a republican order but works in concert with it. Putin seems to be driven more and more by a Milosevic utopian vision of a union of a greater Russia and a willingness to flirt with the apocalypse. The principle of the rule of law both within states and in the international order among states is a fundamental value worth fighting for. But any fight involving a nuclear power in contemporary times poses an existential risk, not simply to the modern world order, but to any order whatsoever.

The threat of nationalism to a state political order can come from without or from xenophobic nationalists from within who may try to seize control of the levers of the state. Further, expansionist nationalism and xenophobic nationalism, while ostensibly opposed, easily become partners in dismantling the legal order of the state system. That is why, while opposing expansionist nationalism, it is also necessary to be wary of internal xenophobic nationalists who may be the keenest opponents of the expansionist variety, for both pay little regard to the nature of the state, the importance of a civil order, the crucial role of state institutions and the rule of law as protectors of minorities domestically and internationally.

The nation-state system as it has developed must be protected and defended whether the threat comes from Western neo-liberal imperialists or Eastern pan-nationalist or pan-religious zealots.

In my piece on The Gatekeepers, I deliberately left out one item because I wanted to discuss it separately. Avraham Shalom who served as head of Shin Bet from 1980-1986 mentioned it in the context of insisting that when it comes to terrorists, there is no morality with respect to their treatment. Candidly, he tells the story of some of the torture techniques used. One was shaking. In one case, he said, the victim was a slight person and when he was shaken he suffered from the equivalent of Shaken Baby Syndrome, the condition a young infant suffers when violently shaken. His brain was badly damaged and the suspect died after being tortured.

When we were going into the film, we crossed paths with Dr. Charles (Husky) Tator and his wife, Carol, who had just seen the film. Husky and I had been in medical school together. He is now a world renowned neurosurgeon. In recent years, he has received wide publicity because of the results of his research on the permanent damage done as a result of concussions in sports like football and hockey. His research, and the publicity about his research, can be credited with the ThinkFirst $1.5 million initiative, the partnership between The Canadian Centre for Ethics and Sport, the Coaching Association of Canada and Hockey Canada to reduce brain injuries in team sports in Canada. When I saw that scene I wished that Husky had gone to the 5:30 p.m. movie instead of the earlier showing so I could have had the benefit of his reflections on that scene.

My own reflections were about the ethics, or the lack of ethics, that Avraham Shalom expressed in discussing torture. He gave the usual reference in justifying torture to the ticking bomb theory – that intelligence people could not be bothered with moral scruples when a bomb may have been planted targeting civilians and time was of the essence. In The Landau Commission of Inquiry (Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity) set up by the Israeli government in 1987 following the death of the two captured hijackers referred to in yesterday’s blog that formed a key part of the film, The Gatekeepers, Supreme Court Justice Moshe Landau confirmed what Avraham Shalom had said in the movie, that Shin Bet or Shabak (formally the General Security Service or GSS) used physical force to interrogate prisoners. Further, the interrogators then covered that up by perjuring themselves when giving testimony in the trials of the Palestinians.

One of the most important outcomes of that Commission was a set of guidelines that governed interrogations in the future. The proposed guidelines were quickly approved by the Israeli cabinet in 1987 that allowed physical pressure on prisoners, but restricted that pressure to moderate means. These recommendations, specified in Appendix 1, were initially secret but were eventually leaked and published in 1991 by Human Rights Watch, "Prison Conditions in Israel and the Occupied Territories – A Middle East Watch Report."

The general principles, however, were available at the time. As the heads of Shin Bet following Avraham Shalom indicated, the use of violence against prisoners was considered acceptable when interrogating prisoners. The question was of degree. The Commission accepted the ticking time bomb theory under the principle of "the lesser evil" and said that actual torture could "be justified in order to uncover a bomb about to explode in a building full of people . . . whether the charge is certain to be detonated in five minutes or in five days." The violence allowed included threats and physical violence, such as slapping, but the Commission insisted that, "The means of pressure should principally take the form of non-violent psychological pressure through a vigorous and extensive interrogation, with the use of stratagems, including acts of deception. However, when these do not attain their purpose, the exertion of a moderate measure of physical pressure cannot be avoided." (my italics)

At the very least, the danger was that such techniques could slide into abhorrent practices, a danger that the Commission fully recognized. Each interrogator could take "matters into his own hands through the unbridled, arbitrary use of coercion against a suspect" thereby undermining the reputation of the state as a law abiding polity and protector of the rights of the citizen. To prevent this, "disproportionate exertion of pressure on the suspect" was deemed inadmissible. Five guidelines were specified. "The pressure must never reach the level of physical torture or maltreatment of the suspect or grievous harm to his honour which deprives him of his human dignity." (my italics) Second, the measures used must be proportionate to the immanence of the anticipated danger given the information available to the interrogator. Third, permitted physical and psychological pressures must be defined and limited in advance by binding directives. Fourth, implementation by interrogators must be subjected to strict supervision and monitoring. Fifth, in the case of even the slightest deviance from these guidelines, the interrogator’s superiors had to react swiftly and effectively, imposing punishment and even using criminal procedures against the interrogator if the interrogator was found to have exceeded the guidelines.

Ironically, the Landau Commission Report and the rapid adoption of its recommendations occurred just prior to the beginning of the first intifada triggered on 8 December 1987 when four Palestinian refugees in Jabalaya were hit and killed by an Israeli trucker, and rumours spread that the deaths were not accidental but a revenge killing for a businessman stabbed and murdered in Gaza two days previously. After all, in addition to the perceived abandonment by Egypt and Jordan, and propelled by large numbers of unemployed youth as well as restrictions on the use of land for building, the intifada was as much a revolt against mass detentions, torture, extrajudicial killings, house demolitions and deportations as against the occupation in general.

The Commission and adoption of the guidelines took place twenty-five years ago. By all accounts, and in my case studies on torture in Israel, the guidelines were effective in limiting the use of excessive force in dealing with prisoners and prisoner interrogation. Nevertheless, force was still permitted to extract confessions. Interrogation methods using moderate violent methods in the nineties following the Landau Commission Report continued. It would have been hard to conclude that these methods respected the dignity and honour of the prisoners. The methods were very moderate compared to many used under Avraham Shalom, but, in addition to shaking, poor food and the use of threats and curses, still included: "depriving the interrogee of sleep for a number of days by binding him or her in painful positions; playing loud music; covering their head with a filthy sack; exposing the interrogee to extreme heat and cold; tying them to a low chair, tilting forward; tightly cuffing the interrogee’s hands; having the interrogee stand, hands tied and drawn upwards; having the interrogee lie on his back on a high stool with his body arched backwards; forcing the interrogee to crouch on his toes with his hands tied behind him."

These results were published by Betselem, the Israeli Human Rights organization, in response to the decision of the Israeli Supreme Court that deemed that causing discomfort and putting pressure on the detainee were only lawful as side-effects of an interrogation; the techniques could not be used to "break" the detainee. The Supreme Court determined that the Shin Bet lacked any legal authority to use physical means of interrogation that cause the detainee to suffer and that are not "reasonable and fair". In 1997, the United Nations Committee Against Torture had already determined that the modified methods following the Landau Report still constituted torture in breach of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to which Israel was a signatory. Israel had ratified the convention in 1991. After the Supreme Court ruling, torture overwhelmingly ceased in the treatment of Palestinian prisoners and detainees. (Cf. The Public Committee Against Torture in Israel)

After the end of the first intifada, the number of Palestinian prisoners and administrative detainees held in Israeli jails declined dramatically until the outbreak of the second intifada when they rose to very high levels. As of the end of 2011, there were only 4,722 security prisoners left, 552 sentenced to life terms.

One would not have known this was the case from watching The Gatekeepers.

As an aside, and in reference to an earlier blog on Obama’s use of drones and targeted killings, The Public Committee Against Torture in Israel took the Israeli government before the Supreme Court on this issue. On 14 December 2006, the Supreme Court of Israel determined that a continuous situation of armed conflict existed between Israel and various Palestinian terrorist organizations. In considering whether the terrorists and their organizations were to be defined as combatants or civilians, the court concluded that it was necessary to obtain well-founded and verifiable information about civilians allegedly taking part in hostilities before attacking them. Civilians taking a direct part in hostilities may not be physically attacked if less harmful means (arrest, interrogation and trial) could be employed against them. Even if employing targeted killings is legal, the customary principle of proportionality must apply. Further, after any action, an independent investigation should be undertaken to ascertain whether proportionality and targeting norms had been respected. The lawfulness of such killings was to be determined on a case-by-case basis.

Compare and contrast this situation with the American use of "torture" and targeted assassinations after the Israeli Supreme Court had outlawed the use of torture to extract "confessions" from prisoners. On 13 November 2001, President George W. Bush signed an order entitled: "Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism". (Cf. Jill Lepore, "The Dark Ages: Terrorism, counterterrorism, and the law of torment" in The New Yorker18 March 2013) The order authorized the detention of suspected terrorists abroad, but they were not to be tried, if they were tried at all, under conventional military law in contrast to previous practice when they were tried domestically under civilian law. John Yoo, Deputy Assistant Attorney General of the United States, drafted the broad rules for America’s "enhanced interrogation techniques. These legal opinions were known as "The Torture Memos" or the "Bybee Memo" because, though drafted by Yoo, they were signed by Assistant Attorney General Jay S. Bybee, head of the Office of Legal Counsel of the United States Department of Justice. Though neither called detainees nor prisoners, these so-called "unlawful combatants" were tortured. Only the infliction of "severe pain" that contributed to loss of significant body function, very serious injury or death was said to constitute torture. A 14 March 2003 memo, just before the USA invaded Iraq on 19 March, concluded "that federal laws against torture, assault and maiming would not apply to the overseas interrogation of terror suspects."

These methods went well beyond those that were authorized by Avraham Shalom in the 1980s and subsequently banned in Israel after 1997, and included waterboarding and the use of dogs. By the next year, two "prisoners" had already died while being tortured at Bagram Air Base. Further, the evidence to bring the suspects to trial even before a military commission were simply paraphrases of what the suspects had admitted under torture. No decent court of law would have permitted them to be used as evidence. Further, the very conservative Supreme Court of the United States in June 2006 also ruled that the President lacked any legal authority to set up these military commissions to act as quasi-legal courts.